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C O N F I D E N T I A L SECTION 01 OF 03 KATHMANDU 001255
SIPDIS
STATE FOR SA/INS
LONDON FOR POL - RIEDEL
E.O. 12958: DECL: 06/24/2012
TAGS: PGOVPTERPHUMNPGON
SUBJECT: NEPAL: IS THE STATE OF EMERGENCY NECESSARY?
REF: A. (A) KATHMANDU 1007
¶B. (B) KATHMANDU 0695
¶C. (C) KATHMANDU 0540
¶D. (D) KATHMANDU 0968
¶E. (E) KATHMANDU 740
¶F. (F) KATHMANDU 731
Classified By: DCM ROBERT K. BOGGS. REASON: 1.5(B,D).
--------
SUMMARY
---------
¶1. (C) When Prime Minister Sher Bahadur Deuba decided to
dissolve Parliament, he cited MPs' refusal to extend the
state of national emergency as a primary reason (Ref A).
Legal experts and others, however, hold different opinions on
the continued need of the state of emergency, as Parliament
passed legislation granting the security forces many of the
emergency powers to fight the Maoists--minus restrictions on
civil liberties. End summary.
--------------------------------------------- -----
SAFETY AND SECURITY UNDER THE STATE OF EMERGENCY
--------------------------------------------- -----
¶2. (SBU) The state of national emergency, first declared by
King Gyanendra November 26 after Maoist insurgents
unilaterally broke a four-month cease-fire, has been in
continuous operation in Nepal (minus a 24-hour lapse in
mid-May following the dissolution of Parliament) for nearly
seven months. The Royal Nepal Army (RNA) has undoubtedly
made gains against Maoist insurgents since November, and its
deployment has boosted casualty statistics steadily upward.
Residents of Kathmandu generally feel that security in the
city--after a precipitous dip from December-April--has
improved markedly. Businessmen report a decline in extortion
attempts, and the incidence of urban bomb-blasts, a staple of
the December and April general strikes, has dropped off
sharply. More and more people are out on the streets at
night, and businesses are open later. Other major cities
also report a lessening of tension. Not far from the
Kathmandu Valley, however, the situation can be vastly
different, where some communities outside heavily fortified
district headquarters are largely left to fend for themselves
against marauding Maoists, especially at night. Many police
posts in more remote areas have been abandoned, as the police
consolidate their positions in more populated areas, often
side by side with Army positions. Curfews are selectively
applied on a district-by-district basis. At least two people
have been shot and killed in the troubled district of Dang in
southwestern Nepal for violating the curfew there.
Kathmandu, on the other hand, has no official curfew,
although most residents, shopkeepers and businesses observe,
by tacit consent, an unofficial curfew of 9:00 p.m.,
although, as mentioned above, this appears to be being
relaxed. Members of Kathmandu's business elite--many of whom
faced threats and extortion before the emergency--generally
approve of the clampdown, although some grumble that curfews
and ubiquitous check-points cut into the tourism and
entertainment industries' profits. The state of emergency
has the full backing of Kathmandu's business leaders, as
exemplified by the heads of the Chambers of Commerce and
Industries.
--------------------------------------------- --
DO YOU NEED AN ORDINANCE WHEN YOU HAVE AN ACT?
--------------------------------------------- --
¶3. (SBU) After ratifying the state of emergency in
February, thereby ensuring its continuation until May 25,
Parliament passed the Terrorist and Destructive Activities
Act April 4, that codified into law many of the emergency
provisions contained in the royal ordinance (Ref B). The Act
was intended to allow the Government to continue the fight
against the insurgents without continued imposition of the
state of emergency and to fulfill commitments under UN
Security Council Resolution 1373 to take steps to combat
terrorism (Ref C). Both the Act and the ordinance maintain
the same definitions of "terrorist" and "terrorist
activities," grant sweeping powers to members of the security
forces, including the Army, to arrest without charge and/or
hold in preventive detention suspected terrorists, and
reserve the same penalties for commission of terrorist acts.
(Note: While both the Act and the emergency ordinance allow
the military to detain people, neither explicitly permits the
army to hold detainees for extended periods. Instead, the
military is supposed to turn over detainees to civilian
authorities within 24 hours, according to the Ministry of Law
and Justice. We have learned, however, that in many cases
the military sidesteps this requirement either by ignoring it
completely or by obtaining notification from the relevant
civilian authority--often the Chief District Officer--that
the jails are full, which, unfortunately, they often are.
End note.)
¶4. (U) The Act does, however, differ from the ordinance in
some procedural aspects, according to Dili Raj Ghimire, Under
Secretary at the Ministry of Law and Justice. For example,
SIPDIS
the Act stipulates that suspects should be arrested only if
there is "reasonable grounds" for suspicion of guilt,
although the law does not define "reasonable grounds." The
Act allows members of the security forces to "search any
house, shop, warehouse, transport vehicle or any other place
belonging to any person whomsoever at any time" or "any
person or goods that the person is carrying with him" as long
as "notice"--not necessarily a warrant--is given (whether
before, during or after the search is not stipulated).
Suspects arrested under the Act must be produced before the
court within 60 days (although they can be held in preventive
detention for 90 days, as long as the place of detention has
the basic amenities of light, water, sufficient air, etc.).
The ordinance, on the other hand, places no limit upon the
time before a suspect's first court appearance, and allows
the period of preventive detention to be extended for an
additional 90 days. For the most part, provisions of the Act
provide greater safeguards for the rights of the accused,
Ghimire emphasized. Perhaps the most significant difference
between the Act and ordinance is that the Act, according to
Law Secretary Udaya Nepali Shrestha, does not abridge basic
civil liberties, such as freedom of press and freedom of
assembly, and the right to pursue judicial remedy. Sindhu
Nath Pyakurel, Chairman of the Nepal Bar Association, echoed
the Secretary's interpretation, adding his view that
imposition of a state of emergency is not necessary to
enforce the provisions of the Act.
-------------
THE PM DOES
-------------
¶5. (C) At some point, Prime Minister Sher Bahadur Deuba
seems to have shared the view that the emergency ordinance
had been made largely redundant by passage of the Act. Upon
his May 15 return from his headline-grabbing visits to the
U.S. and UK, he was quoted by local reporters as asserting
the emergency--due to expire a mere ten days later--"isn't
necessary to combat terrorism." Within a week, however, and
after extensive discussions with the security chiefs (and,
some believe, the Palace), Deuba reversed his public position
radically, and was pushing, against the apparent opposition
of most MPs in his party, for a six-month extension of the
emergency. Deuba subsequently asked the King to dissolve
Parliament and call fresh elections (Ref A). Although Deuba
confided to the Ambassador that his primary motive in moving
against Parliament was to avert a no-confidence motion (Ref
A), the PM's May 24 public address to the nation focused on
extension of the emergency--and the danger that would befall
the nation in its absence--as his most important reason. He
told the public he wanted to extend the emergency to "keep
morale high and continue the successes achieved by the
security forces against the terrorists and continue the
campaign against terrorism." Continuing the emergency was
important "for the protection of democratic system and the
strengtheninng of national security to defeat the
terrorists." The ruling party's failure to support
extension, on the other hand, "boosted up the morale of the
terrorists"; those opposed to extension "were working for the
fulfillment of the terrorists' wishes."
¶6. (C) In spite of the importance the PM publicly claimed
to attach to extension of the emergency, he has never
discussed in detail the perceived deficiencies of the Act in
prosecuting the insurgency. One former member of the PM's
Cabinet, while acknowledging the PM's legitimate fear of a
no-confidence motion, commented that the PM should have been
more willing to give the Act "a chance" to determine its
effectiveness in countering the insurgency before insisting
on the emergency. Deuba's about-face, his former colleague
observed, puts him in the paradoxical position of arguing on
the one hand that conditions in the country are so dangerous
that extension of the state of emergency is necessary while
positing on the other that conditions in the country are safe
enough to hold national elections. Other observers have
criticized the PM for calling national elections at the same
time that the Government opted to postpone local body
elections--due to have been held in May--for security reasons.
---------------------
THE ARMY'S ARGUMENT
---------------------
¶7. (C) Given the compressed sequence of consultations
following Deuba's return to Nepal in May, some observers have
speculated that the military influenced the PM to insist on
the emergency. (Comment: Another scenario is that the PM,
convinced that his political rivals would persist in trying
to unseat him, chose extension of the state of emergency--an
issue on which he was certain of support from the Army and
the Palace--as a pretext to stage a showdown. End comment.)
Maj. Gen. Rukmungud Katuwal told the Ambassador that RNA
leadership had asked for extension, after exchanging frank
views with Deuba on the security situation. Many other
members of the military leadership have told us they favor
extension of the state of emergency for a variety of reasons.
Chief of General Staff Lt. Gen. Pyar Jung Thapa told the
Ambassador he favors retaining the emergency because it is
useful in partly controlling the press and politicians and
because he believes the Act weakens security forces' ability
to perform search and seizure. He said he would support
greater flexibility in the state of emergency, making it
applicable selectively on a district-by-district basis.
According to Col. Deepak Gurung, head of the RNA's Office of
Public Affairs, imposition of the emergency makes the Army's
task easier by prohibiting meetings of more than four
persons, eliminating the possibility of strikes, allowing
extended periods of detention and permitting searches without
warrants. (As noted in Para 4 above, the Act grants
extensive powers of search to security forces.) A civilian
Ministry of Defense spokesman, speaking off the record,
agreed that the Act and the emergency contain nearly
identical provisions, and speculated that the RNA wants
continuation of the emergency as a way of suppressing
unfavorable coverage in the press. Law Under Secretary
Ghimire commented that, absent the emergency, the security
forces "would have a lot of trouble" from people pressing
cases in court against illegal detention, false arrest, etc.
----------
COMMENT
----------
¶8. (C) While the Prime Minister moved to dissolve
Parliament to avoid a vote of no confidence, he has gone on
record as citing the need for an extended state of emergency
as his principal motivation. This emphasis has resulted, not
surprisingly, in heightened scrutiny of the emergency's
protracted restictions on civil rights. The simultaneous
suspension of civil rights and dissolution of
Parliament--complicated by the uncertain prospect of
elections occurring on schedule--put Nepal's already fragile
democratic institutions under significant strain.
MALINOWSKI